Overview of the Revised Code of Canon Law

The Catholic Lawyer Volume 29 Number 2 Volume 29, Spring 1984, Number 2 Article 8 Overview of the Revised Code of Canon Law Monsignor John A. Alesandro Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Religion Law Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. OVERVIEW OF THE REVISED CODE OF CANON LAW MONSIGNOR JOHN A. ALESANDROf INTRODUCTION While I sincerely appreciate our kind invitation, I am keenly aware of my lack of a civil law degree or any civil law experience except for that which my diocesan attorney himself has instilled in me. It might have been more logical to arrange a presentation from someone with both canon and civil law degrees; on the other hand, perhaps not. For, it is important to understand that the laws of the Church do form a separate system, an internal and primary complex of definitions, rules, and regulations, and that the civil law must be used properly to protect, implement, and foster the canonical juridical institutes, not vice versa. Do not be lul- led by legal terminology into thinking that an equivalency exists between canon and civil structures. In a sense, just as we translate the canons from Latin into English while the authoritative text remains in Latin, so also canonical structures must be translated into civil structures with the awareness that the reality remains authoritatively canonical. This inter- play with civil law has been a fascinating leitmotif through the Church's history. Sometimes, there was a complete intermingling, at others hostil- ity, today almost an indifference except for those, like us, who are required to match them and integrate them. The first part of the presentation offers a brief synopsis of the history of canon law, a history in which the fluctuating interrelationship with civil law is most apparent. The second part of the presentation offers an overview of the seven books of the Code with particular emphasis on some points (other than financial) in which a canon lawyer believes civil attorneys would be, or should be interested. t S.T.L., J.C.D. Diocese of Rockville Center, N.Y. 29 CATHOLIC LAWYER, SPRING 1984 I. THE REVISED CODE OF CANON LAW BACKGROUND INFORMATION A. The Early Church Law appeared early in the life of the Christian community. Examples of it are found even in the New Testament. Despite his vociferous denun- ciations of the old "law," St. Paul was a model par excellence of the early Christian legislator. He articulated many moral and disciplinary norms for his converts to follow if they expected to "put on Christ." The Council of Jerusalem, under the leadership of St. James, is an example of a law- drafting situation found in the Acts of the Apostles. In the primitive Christian community, laws were extremely localized, addressing specific problems and answering concrete questions. After the Edict of Constantine (313), the Church, newly emerged from the catacombs, developed openly, forming rather complex social structures. Structures require law. Furthermore, extensive conversions pointed up the need for widely applicable norms if the Church were going to protect and foster its unity. The first ecumenical council of Nicea was held in 325 to address such concerns. It treated not only doctrinal matters but points of pastoral practice and discipline as well. Ecumenical councils, such as Nicea, gave rise to a body of general laws to be respected by all Church members. At the same time, many regional councils were held. These councils went far beyond purely local questions and determinations and added to the growing set of Church laws. Finally, throughout this early period, many questions were answered and points settled in writing by individual bishops and popes. These documents, later called decretals, were saved and collected for future reference. The manner in which these sources of primitive Church law were preserved was rather haphazard. Some norms found their way into works on civil law. For example, many ecclesiastical laws on marriage were in- corporated into the work known as the Corpus Juris Civilis. Other texts were handed down from generation to generation in separate manuscripts. As the Roman Empire disintegrated and the eastern peoples mi- grated to the West, many documents were lost. During the Dark Ages, however, some documents were preserved, particularly in monasteries. These documents remained disconnected. Church law had not yet been formed into a juridical system. In this first period, you can see that ecclesiastical law started as a completely separate entity. It was distinct from the well-developed Ro- man law system and in some cases, such as divorce, contrary and alien to it. Nevertheless, hundreds of years went by and some intermingling of religious and secular laws occurred. As the Roman Empire declined, the introduction of a completely different form of tribal law complicated the CANON LAW OVERVIEW matter further. There were actually three legal systems in effect at one time - Roman law (with the vestiges of the Latin language), various tribal laws (with their own developing languages), and canon law with a foot in both sectors (in Latin). In many ways, the Church and its practice (and therefore its laws) were the bridge between two disparate cultures and helped the transition to an amalgamated culture. B. The Carolingian Reform During the ninth century, a renewal of sorts occurred after the crowning of Charlemagne as Holy Roman Emperor. There was an at- tempt to centralize social life and stabilize the structures of Christendom. The second generation of Carolingian scholars turned to canon law as a means of reform and unity. One group, located probably in France, au- thored sets of canonical texts, drafting them some time between 847 and 852. These laws are often referred to as the Pseudo-Isidorian or False Decretals. (Many of the ingenious texts were attributed to Isidore Merca- tor to lend them greater weight). These documents supplemented and in- terpreted the existing body of law in order to defend the clergy and Church possessions against the designs of the feudal lords. Although the Church of Rome was not involved in these fabrications, one of the chief strategies of the documents was to emphasize the powers, prerogatives, and supremacy of the Pope. This form of "creative" legislation, like the Carolingian experiment itself, proved unsuccessful. The fact that the texts were clever forgeries, however, was not discovered until seven centuries later. In the meantime, they actually proved very useful in helping the Church to coordinate its canonical legislation. By this time, Roman law as such had completely disappeared, and Latin fell into disuse. It was only because of a few intellectuals and the manuscript collections that the thread of history was maintained. For all practical purposes, law was religious. This was the common heritage. The "civil" law of the time, if we can call it that, was the will of the feudal lord. The only hope for cultural centralization was in the Church - but this experiment failed. C. The Gregorian Reform As the West emerged from the Dark Ages, manuscripts containing many of the Church's laws were uncovered. Scholars began in earnest to formulate collections of such laws. These works, however, had very little system or coordination in them. Discrepancies and even outright contra- dictions existed side by side in the collections. The Gregorian Reform of the eleventh century, named after Pope Gregory VII (Hildebrand), needed more than collections. It sought formulas and authoritative back- ing for its program of renewal in the ancient discipline of the Roman 29 CATHOLIC LAWYER, SPRING 1984 church. All the known archives of Italy were searched for texts bearing immediately on topics such as papal supremacy, the freedom of the Church and clerical celibacy. As Western civilization awoke, law became vitally important. Roman civil law, which had disappeared, was redis- covered and put to work. The Church needed more than disparate texts. It required a system of law which would put some order into its canonical heritage. The religious-secular mixture *of christendom was ultimately disad- vantageous to the Church. It was like a noble dream, one faith, one peo- ple, but it was not founded on reality. The intellectual renaissance of the eleventh and twelfth centuries involved an outreach, a burst of cultural curiosity.1 Extended trade was among its chief by-products. Trade with the East and eventually with the West required a legal system. The Church's canonical tradition was inadequate to the task. The rediscovery of Roman law served this purpose and "civil" law once again made an independent resurgence. In this. climate there was only one direction the Church could go - to withdraw its activity from secular control. In other words, it needed to define itself juridically and to state its rules and regulations. Church historian David Knowles has stated: In the past attention was often directed almost exclusively to the contest between empire and papacy, and, within that context itself, to the con- troversy over the particular point of law investiture. It is only with the last fifty years that this great dispute, the contest (lis) par excellence for Ger- man historians, has been seen more correctly as one aspect of a vast move- ment of moral, disciplinary and administrative reform affecting the whole of society and not only the papacy and the clergy. Seen still more fully, even the wide province of ecclesiastical and religious reform is only one aspect of the emergence of western Europe from its intellectual tutelage into an ado- lescence of mental and practical capability; it forms in fact, a part of the new life which in other manifestations has been called the renaissance of the eleventh and twelfth centuries.

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